HAMER v. HUMPHREYS, 2 Miles 28

Per Curiam : The judgment for want of an affidavit of defence is by default, being so designated by the act. Here the plaintiff has chosen to treat the defendant as not in default, not only by not moving for judgment, but by asking and obtaining a plea from the defendant, which amount to a waiver of his previous right, under the act, to have judgment. Had the plaintiff moved for judgment, instead of calling on the defendant to plead, the latter, under our rules, might have exhibited such a case as to have been permitted a supplemental affidavit of defence.

The act, in giving a right to the plaintiff to have a judgment by default, contemplates a condition of things for which it provides, that is, the plaintiff’s copy of the instrument, &c. on which the suit is brought, and the absence or insufficiency of defendant’s affidavit But here the condition of things is altered by the plaintiff’s own act, and repeated decisions in Pennsylvania have settled that a plaintiff may waive a right or advantage. Such.a waiver is presented in this case. Rule discharged.